Oracle Vs. Google Could Impact All Of Software

Most reporting on this week's Oracle (ORCL) vs. Google (GOOG) trial is of the celebrity type.

Oracle CEO Larry Ellison looked uncomfortable on the stand after dancing for reporters outside the courthouse. Google CEO Larry Page was evasive with Oracle's lawyers. Ellison was flustered. Page "can't recall" negotiating for a Java license.

This is not a case about business celebrities. These are not Kardashians.

The question is whether Oracle can assert copyright over a computer language. Can you own, and legally control, the Application Program Interfaces (APIs) that let someone else use the language?

It's an important question and one that is made difficult to answer because of Java's history.

Originally it was a "write once, run anywhere" language that was proprietary to its creator, Sun Microsystems. During these days there were also many implementations of the language made by others, under open source licenses. Later, Sun decided to make the language open source, under the General Public License (GPL), in order to unify development, so that it could fulfill its promise. Google made the decision to use Java after Sun made Java open source.

Later, Oracle bought Sun. Oracle saw the success of Android, saw that Sun had not sold a commercial license for Java to Google, and sued asserting its copyright. The question before the court, then, is whether Oracle's copyright to the programming language - rather than a program written with it - is valid.

So, can you have a copyright on a language?

Former Sun executive Simon Phipps says no.

This flies in the face of the received wisdom of the software industry. It's so widely accepted that programming interfaces and languages are beyond the scope of copyright that very few cases have ever been brought to court. In those that have, the received wisdom has largely been upheld.

Former Oracle opponent and analyst Florian Mueller, who now consults for Oracle, agrees with Oracle based on the trial evidence.

Oracle's opening statement presented ten documents indicating willful infringement, from a five-year period in the middle of which Google launched Android.

The case boils down to this question. Did Google need a license in order to use Java? If it did, then the creator of any computer language could now assert copyright, and control over, the use of that language.

Imagine if someone copyrighted English and didn't like what you did with it. Imagine if you needed Microsoft's (MSFT) permission to release a program in Visual Basic, or to connect with a Windows server.

The facts here may be on Oracle's side. But the law, it seems to me, needs to be on Google's side. If it's not, I can easily see the whole software industry moving overseas.

Disclosure: I am long GOOG, MSFT.